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231
49 S.Ct. 274
73 L.Ed. 677
This case arose under section 3 of the Immigration Act of 1924, c. 190, 43 Stat.
153, 154, U. S. Code, title 8, 203 et seq. (8 USCA 203 et seq.), which
provides: 'When used in this Act the term 'immigrant' means any alien departing
from any place outside the United States destined for the United States, except
* * * (2) an alien visiting the United States temporarily as a tourist or
temporarily for business or pleasure. * * *' The complete section, together with
other pertinent provisions of the act, are copied in the margin.1
been at work in the United States for more than a year, crossing daily by the
use of an identification card. He sought admission to resume work. Both were
denied admission by the immigration authorities, on the ground that they were
quota immigrants within the meaning of the act, and did not come within the
excepting clause. Section 3(2). The following departmental regulation, adopted
under section 24 of the act (8 USCA 222) has been in force since September,
1925: 'Temporary visits * * * for the purpose of performing labor for hire are
not considered to be within the purview of section 3(2) of the act.' It is not
disputed that both aliens were property excluded if the validity of this
regulation is established.
3
In a habeas corpus proceeding, brought in behalf of the two aliens, the federal
District Court for the Western District of New York sustained the action of the
immigration officials and dismissed the writ. On apppeal, this judgment was
reversed. The Circuit Court of Appeals held that an alien crossing from Canada
to the United States daily to labor for hire was not an immigrant but a visitor
for business within the meaning of section 3(2) of the act. U. S. on Petition of
Albro, ex rel. Cook v. Karnuth, 24 F.(2d) 649. In reaching that conclusion the
court seemed of opinion that, if the statute was so construed as to exclude the
aliens, it would be in conflict with article 3 of the Jay Treaty of 1794, 8 Stat.
116, 117, a result, of course, to be avoided if reasonably it could be done. Lem
Moon Sing v. United States, 158 U. S. 538, 549, 15 S. Ct. 967, 39 L. Ed. 1082.
First. The pertinent provision of article 3 of the Jay Treaty follows: 'It is agreed
that it shall at all times be free to his Majesty's subjects, and to the citizens of
the United States, and also to the Indians dwelling on either side of the said
boundary line, freely to pass and repass by land or inland navigation, into the
respective territories and countries of the two parties, on the continent of
America (the country within the limits of the Hudson's bay Company only
excepted) and to navigate all the lakes, rivers and waters thereof, and freely to
carry on trade and commerce with each other. * * *'
6
The position of the government is that (1) there is no conflict between the
treaty and the statute, but (2) in any event, the treaty provision relied on was
abrogated by the War of 1812. We pass at once to a consideration of the second
contention, since, if that be sustained, the first becomes immaterial and the
statute open to construction unembarrassed by the treaty.
The effect of war upon treaties is a subject in respect of which there are widely
divergent opinions. The doctrine sometimes asserted, especially by the older
writers, that war ipso facto annuls treaties of every kind between the warring
nations, is repudiated by the great weight of modern authority; and the view
now commonly accepted is that 'whether the stipulations of a treaty are
annulled by war depends upon their intrinsic character.' 5 Moore's Digest of
International Law, 779, p. 383. But as to precisely what treaties fall and what
survive, under this designation, there is lack of accord. The authorities, as well
as the practice of nations, present a great contrariety of views. The law of the
subject is still in the marking, and, in attempting to formulate principles at all
approaching generality, courts must proceed with a good deal of caution. But
there seems to be fairly common agreement that at least the following treaty
obligations remain in force: Stipulations in respect of what shall be done in a
state of war; treaties of cession, boundary, and the like; provisions giving the
right to citizens or subjects of one of the high contracting powers to continue to
hold and transmit land in the territory of the other; and, generally, provisions
which represent completed acts. On the other hand, treaties of amity, of
alliance, and the like, having a political character, the object of which 'is to
promote relations of harmony between nation and nation,' are generally
regarded as belonging to the class of treaty stipulations that are absolutely
annulled by war. Id., p. 385, quoting Calvo, Droit Int. (4th Ed.) IV. 65, 1931.
In Society, etc., v. New Haven, 8 Wheat. 464, 5 L. Ed. 662, a case involving
the right of a British corporation to continue to hold lands in Vermont, this
court was called upon to determine the effect of the War of 1812 upon the ninth
article of the Jay Treaty which provides:
'That British subjects who now hold lands in the territories of the United States,
and American citizens who now hold lands in the dominions of his Majesty,
shall continue to hold them according to the nature and tenure of their
respective estates and titles therein; and may grant, sell, or devise the same to
whom they please, in like manner as if they were natives; and that neither they
nor their heirs or assigns shall, so far as may respect the said lands and the legal
remedies incident thereto, be regarded as aliens.' 8 Stat. 116, 122.
10
It was held that the title to the property of the society was protected by the sixth
article of the Treaty of 1783, 8 Stat. 80, 83, was confirmed by the words of
article 9 above quoted, and was not affected by the War of 1812. The
applicable rule was stated (8 Wheat. p. 494) in the following words:
11
'But we are not inclined to admit the doctrine urged at the bar, that treaties
become extinguished, ipso facto, by war between the two governments, unless
they should be revived by an express or implied renewal on the return of peace.
Whatever may be the latitude of doctrine laid down by elementary writers on
the law of nations, dealing in general terms, in relation to this subject, we are
satisfied, that the doctrine contended for is not universally true. There may be
treaties of such a nature, as to their object and import, as that war will put an
end to them; but where treaties contemplate a permanent arrangement of
territorial, and other national rights, or which, in their terms, are meant to
provide for the event of an intervening war, it would be against every principle
of just interpretation to hold them extinguished by the event of war. If such
were the law, even the treaty of 1783, so far as it fixed our limits, and
acknowledged our independence, would be gone, and we should have had again
to struggle for both upon original revolutionary principles. Such a construction
was never asserted, and would be so monstrous as to supersede all reasoning.
12
'We think, therefore, that treaties stipulating for permanent rights, and general
arrangements, and professing to aim at perpetuity, and to deal with the case of
war as well as of peace, do not cease on the occurrence of war, but are, at most,
only suspended while it lasts; and unless they are waived by the parties, or new
and repugnant stipulations are made, they revive in their operation at the return
of peace.'
13
The English High Court of Chancery reached the same conclusion in Sutton v.
Sutton, 1 Russ. & M. 663, 675:
14
'The relations, which had subsisted between Great Britain and America, when
they formed one empire, led to the introduction of the ninth section of the treaty
of 1794, and made it highly reasonable that the subjects of the two parts of the
divided empire should, notwithstanding the separation, be protected in the
mutual enjoyment of their landed property; and, the privileges of natives being
reciprocally given, not only to the actual possessors of lands, but to their heirs
and assigns, it is a reasonable construction that it was the intention of the treaty
that the operation of the treaty should be permanent, and not depend upon the
continuance of a state of peace.'
15
These cases are cited by respondents and relied upon as determinative of the
effect of the War of 1812 upon article 3 of the treaty. This view we are unable
to accept. Article 9 and article 3 relate to fundamentally different things. Article
9 aims at perpetuity, and deals with existing rights, vested and permanent in
character, in respect of which, by express provision, neither the owners nor their
heirs or assigns are to be regarded as aliens. These are rights which, by their
very nature, are fixed and continuing, regardless of war or peace. But the
privilege accorded by article 3 is one created by the treaty, having no
obligatory existence apart from that instrument, dictated by considerations of
mutual trust and confidence, and resting upon the presumption that the
privilege will not be exercised to unneighborly ends. It is, in no sense, a vested
right. It is not permanent in its nature. It is wholly promissory and prospective,
and necessarily ceases to operate in a state of war, since the passing and
repassing of citizens or subjects of one sovereignty into the territory of another
is inconsistent with a condition of hostility. See 7 Moore's Digest of
International Law, 1135; 2 Hyde, International Law, 606. The reasons for
the conclusion are obvious-among them, that otherwise the door would be open
for treasonable intercourse. And it is easy to see that such freedom of
intercourse also may be incompatible with conditions following the termination
of the war. Disturbance of peaceful relations between countries occasioned by
war is often so profound that the accompanying bitterness, distrust, and hate
indefinitely survive the coming of peace. The causes, conduct, or result of the
war may be such as to render a revival of the privilege inconsistent with a new
or altered state of affairs. The grant of the privilege connotes the existence of
normal peaceful relations. When these are broken by war, it is wholly
problematic whether the ensuing peace will be of such character as to justify
the neighborly freedom of intercourse which prevailed before the rupture. It
follows that the provision belongs to the class of treaties which does not survive
war between the high contracting parties, in respect of which, we quote, as
apposite, the words of a careful writer on the subject:
16
'Treaties of the fifth class are necessarily at least suspended by war, many of
them are necessarily annulled, and there is nothing in any of them to make them
revive as a matter of course on the advent of peace-frequently in fact a change
in the relations of the parties to them effected by the treaty of peace is
inconsistent with a renewal of the identical stipulations. It would appear
therefore to be simplest to take them to be all annulled, and to adopt the easy
course, when it is wished to put them in force again without alteration, of
expressly stipulating for their renewal by an article in the treaty of peace.' Hall,
Westlake classifies treaties not affected by war as (1) those providing what is to
be done in a state of war; (2) transitory or dispositive treaties, including such as
are intended to establish a permanent condition of things, such as treaties of
cession, boundary, and recognition of independence, as well as those having no
conceivable connection with the causes of war or peace; and (3) treaties
establishing arrangements to which third powers are parties, such as guaranties
and postal and other unions. Westlake, International Law, part II, pp. 29-32. He
the says:
18
19
Fauchille, Traite de Droit International Public, 1921, vol. II, p. 55, says that:
20
'A state of war puts an end to treaties concluded with a view to peaceful
relations between the signatories and the object or end of which is to strengthen
or maintain such peaceful relations, for example, treaties of alliance, subsidies,
guarantees, commerce, navigation, customs union, etc. Those treaties from their
very nature are subject to an implicit resolutory condition, namely a break in
the state of peace. They cannot survive the outbreak of hostilities between the
signatory States. War, to them, is a cause of final extinction and not of mere
suspension. When peace is concluded, they do not spontaneously come out of a
comatose state; they do not revive unless expressly renewed in the peace
treaty.'2
21
These expressions and others of similar import which might be added, confirm
our conclusion that the provision of the Jay Treaty now under consideration
was brought to an end by the War of 1812, leaving the contracting powers
discharged from all obligation in respect thereto, and, in the absence of a
renewal, free to deal with the matter as their views of national policy,
respectively, might from time to time dictate.
22
We are not unmindful of the agreement in article 28 of the Treaty 'that the first
ten articles of this treaty shall be permanent, and that the subsequent articles,
except the twelfth, shall be limited in their duration to twelve years.' It is quite
apparent that the word 'permanent' as applied to the first ten articles was used to
differentiate them from the subsequent articles-that is to say, it was not
employed as a synonym for 'perpetual' or 'everlasting,' but in the sense that
those articles were not limited to a specific period of time, as was the case in
respect of the remaining articles. Having regard to the context, such an
interpretation of the word 'permanent' is neither strained nor unusual. See
Texas, etc., Railway Co. v. Marshall, 136 U. S. 393, 403, 10 S. Ct. 846, 34 L.
Ed. 385; Bassett v. Johnson, 2 N. J. Eq. 154, 162.
23
It is true, as respondents assert, that citizens and subjects of the two countries
continued after the War of 1812, as before, freely to pass and repass the
international boundary line. And so they would have done if there never had
been a treaty on the subject Until a very recent period, the policy of the United
States, with certain definitely specified exceptions, had been to open its doors to
all comers without regard to their allegiance. This policy sufficiently accounts
for the acquiescence of the government in the continued exercise of the
crossing privilege upon the part of the inhabitants of Canada, with whom we
have always been upon the most friendly terms; and a presumption that such
acquiescence recognized a revival of the treaty obligation cannot be indulged.
24
25
26
27
28
Judgment reversed.
Sec. 3. When used in this Act the term 'immigrant' means any alien departing
from any place outside the United States destined for the United States, except
(1) a government official, his family, attendants, servants, and employees, (2)
* * * Re solus par l'e tat de guerre les traites conclus en vue de relations
pacifiques entre les signataires et ayant pour objet ou pour but la consolidation
ou le maintien de ces relations pacifiques les traites d'alliance, de subsides, de
garantie, de commerce, de navigation, d'union douanie re, etc. Ces traites sont
par leur nature me me affectes d'une condition re solutoire implicite, la
cessation de l'e tat de paix. Ils ne peuvent pas survivre a l'ouverture des
hostilites entre les Etats signataires. La guerre est pour eux une cause
d'extinction de finitive, et non une cause de simple suspension. La paix
conclue, ils ne sortent pas spontane ment d'un e tat de le thargie momentane :
ils ne revivent pas, a moins qu'ils ne soient expresse ment renouveles dans le
traite de paix.